Monday, December 13, 2010

More Scorn for Judge Hudson's Health Care Ruling

Frank Pasquale

Well, I guess we all now know that Federal Judge Henry E. Hudson has a "stake worth between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform -- the very law against which he ruled today." Andrew Koppelman's post below examines some of the major flaws in the opinion. Over at Health Reform Watch, we have previously hosted two pieces by Mark A. Hall (one of the nation’s leading scholars in health care law and policy) making the case for the constitutionality of the ACA. His latest installment finds little in Judge Hudson's ruling to change his mind:

Although the court nodded to the challengers’ burden of persuasion and the presumption in favor of constitutionality, it emphasized the lack of any “specifically articulated constitutional authority . . . to mandate the purchase of health insurance” (p. 20). And although the case was about government powers rather than constitutionally-protected individual rights, the judge said (p. 37) that, “At its core this dispute is . . . about an individual’s right to choose” to be uninsured. [Hudson appears to be] someone determined to strike the mandate regardless of the force of argument in the way.

Hall is puzzled by much of the ruling:

[Hudson reasoned that] "the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce.” What!? . . . Doesn’t this reason that the power in question is untethered because it’s not tethered to itself? Shouldn’t we be looking to link to OTHER powers or objectives that ARE within the Commerce Clause? The government’s clearly stated position, summarized by the court itself, is obviously that regulating how insurance is offered and sold is easily within the core of the commerce power. That forms the anchor to which the individual mandate is tethered - a straightforward position to which the court never responded.

Admittedly, there is a progressive policy case to be made for striking down the individual mandate, if you believe other funding sources can be found. As Jamie Court wrote today for Consumer Watchdog:

Today's ruling makes clear that the popular and progressive parts of health care reform could go forward without the big sop to health insurance companies -- mandatory purchases without regulated premiums. . . . 70% of Americans consistently oppose mandatory health insurance purchases. . . . Most of the progressive parts of health care reform - subsidies to buy insurance for the poor and rules to make the marketplace fairer - enjoy 60% to 70% public support. Mandatory purchases, however, will consistently suffer the public's wrath because of popular distrust of the insurance industry and the high cost of health insurance premiums.

I could see Jamie Court's point if I had any faith that Washington would ask millionaires and billionaires to pay a fair share of taxes. The Obama/GOP tax cut deal (and the upcoming GOP takeover of the Senate) destroys that possibility for at least the next four years. Judge Hudson's ruling is a first step toward unraveling the ACA's complex and fragile backstop of aid to the uninsured. If the Supreme Court affirms it, we are well on our way to a new Lochner era.

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